Ephraim Percy Kenyanito

Peter Micek and Deji Olukotun contributed to this post.

Today the government in Uganda blocked social media services in anticipation of the swearing-in ceremony for President Yoweri Museveni that will take place tomorrow. Uganda’s telecommunications regulator, the Uganda Communications Commission (UCC), confirmed the block, citing “national security” as the reason. This is the second time this year that Uganda has carried out an internet shutdown in the election period. It’s part of a deeply troubling trend, and one that we specifically called out in our submission to the United Nations Human Rights Council for Uganda’s Universal Periodic Review.

The telco Airtel Uganda cited the blocking order from the government here:

Social Media will be temporarily disabled as per UCC directive. All our other services are available. We apologize for any inconveniences.

— Airtel Uganda (@Airtel_Ug) May 11, 2016

MTN Uganda also acknowledged the blocking order:

The UCC has issued a directive to shut down all social media platforms immediately until otherwise advised by government. (3/4)

— MTN Uganda (@mtnug) May 11, 2016

Ugandans expressed their discontent, connecting the shutdown to one that took place in Ethiopia’s Oromia region:

https://web.archive.org/web/20160513120108if_/https://www.facebook.com/plugins/post.php?href=https%3A%2F%2Fwww.facebook.com%2Flilahabesha%2Fposts%2F10153536038986723&width=500

The last shutdown in Uganda took place in February, when the government blocked WhatsApp, Facebook, Twitter, and mobile banking services just as citizens headed to the polls. At the time, we joined a coalition of groups to ask that the government stop the shutdown.Internet shutdowns do not restore order, protect rights, or keep people safe. They also come at a significant financial cost. Our conservative estimate for the last shutdown in Uganda comes in at around USD$25 million lost per day for e-banking services alone. Currently, in this shutdown, it appears that mobile banking services remain online, but there will likely be knock-on economic effects for blocking social media, which is often a key platform for businesses.

We cannot allow shutdowns to become the new norm in Uganda or anywhere else. Human rights are at stake, and research shows that internet shutdowns and state violence go hand in hand.

That is why we launched the #KeepitOn campaign, through which we aim to dismantle the shutdown “machine” — reaching out to everyone from individuals that are affected to the people at companies, within governments, and at international governmental bodies who can work to stop this harmful practice.

We have recorded more than 10 intentional disruptions so far this year, and we don’t want 2016 to be the year that internet shutdowns become commonplace. We call on the African Union and Human Rights Council at the United Nations to condemn internet shutdowns as violations of international law. Further, we ask all telcos in the country, including MTN and Airtel, to push back against the order using every tool at their disposal, whether legal, political, or commercial.

You can learn more at https://www.accessnow.org/internet-shutdowns, where we will be drawing attention to campaigns globally and sharing opportunities to take action. If you’re part of an organization that wants to help stop shutdowns in Africa or anywhere else, you can reach out to deji@accessnow.org. Meanwhile, we encourage you to stay tuned by following us on Twitter or Facebook, and participate in the conversation using the hashtag #KeepitOn.

This article was originally published on Ephraim’s professional page on Access Now.

Access Now recently submitted evidence on the digital rights records of both South Sudan (PDF) and Uganda (PDF) for the United Nations Human Rights Council Universal Periodic Review (UPR). The Universal Periodic Review is the cooperative process by which the Human Rights Council reviews the human rights records of all 193 U.N. member states.

Our submissions note ways that South Sudan and Uganda fail to comply with obligations under international human rights law to protect and promote free expression, privacy, Net Neutrality, business and human rights, and digital security. We offer specific recommendations, and will push delegates in Geneva to take them up.

Here’s a look at the digital rights landscape in South Sudan and Uganda, and the implications for people at risk of human rights violations in these countries.

Unity in South Sudan

Two years ago, there was only one Sudan. After a referendum, citizens decided to have two separate countries: Sudan and South Sudan. Today, both countries face grave security and human rights threats, online and off.

To the country’s UPR review, Access Now submitted comments pointing out that while some progress has been made, South Sudan has failed to sign or ratify a number of international human rights instruments. South Sudan has yet to take action on the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Convention on the Elimination of All Forms of Racial Discrimination (CERD), among other human rights instruments. An inadequate legal framework for the protection of human rights makes it difficult for state actors and corporations to be held accountable for violations.

Our submission emphasizes that as more connections are made, and more citizens come online, these new internet users would benefit from opportunities for education, training, and capacity-building, so they can learn how to exercise their human rights securely and effectively using information and communications technologies.

The South Sudan government has recently taken steps toward peace in its internal conflict, by forming a transitional unity body and resuming operations after months of negotiations between rebel leaders and the president. The U.N. Security Council has given its vote of confidence to the power-sharing agreement that could end the two year-long civil war there. Given this positive development for peace, Access Now would like to further call on the South Sudan government to protect freedom of the media and digital rights as the nation enters this new phase.

For its part, Sudan — the northern of the two countries — underwent its UPR hearings in Geneva last week. Access Now supported our partners at the African Centre for Justice and Peace Studies, the International Federation for Human Rights (FIDH), and the International Refugee Rights Initiative, as well as other Sudanese and African activists, by participating in an online campaign to highlight the state of human rights in Sudan. We tweeted using the hashtags #UPR25 and #Sudan to draw attention to the country’s devastating 2013 internet shutdown, and its deadly crackdown on student protesters in the capital Khartoum. Internet shutdowns violate human rights, and the country should never shut down the internet again.

Uganda

Access Now submitted comments focused on an internet shutdown on February 18, 2016, an outage affecting people’s ability to use Twitter, Facebook, and other communications platforms. We explained that a growing body of jurisprudence has found that internet shutdowns violate international law. In 2015, various experts from the United Nations Organization for Security and Co-operation in Europe (OSCE), Organization of American States (OAS), and the African Commission on Human and Peoples’ Rights (ACHPR), issued an historic statement declaring that internet “kill switches” can never be justified under international human rights law, even in times of conflict.

Access Now also emphasized that Uganda should stop buying spyware and surveillance technology. Further, the country should reform the following laws to comply with international law: the Press and Journalist Act of 2000, Penal Code, 2002 Anti-Terrorism Act, and the 2011 Computer Misuse Act.

Where do we go from here?

We recommend that South Sudan and Uganda improve their human rights record and treatment of digital rights in several areas. They should:

1. Commit to enhancing freedom of expression online and preventing violations by state and non-state actors, such as companies;
2. Commit to refrain from slowing, blocking, or shutting down internet and telecommunications services, particularly during elections and public assemblies;
3. Publicly disclose any procurement of or contracts to purchase, maintain, or operate surveillance technology;
4. Enact laws protecting access to information and preventing network discrimination, also known as Net Neutrality; and
5. Improve cooperation with United Nations and African Union treaty mechanisms and issue standing invitations to U.N. special procedures such as the U.N. special rapporteurs on freedom of expression and privacy.

We recommend that South Sudan in particular commit to acting upon the resolution on democracy in the digital era of October 21, 2015, which took place during the 133rd Assembly of the Inter-Parliamentary Union (IPU). South Sudan was among the 167 national governments that unanimously adopted the resolution. Further, we recommend it sign and ratify core international human rights instruments including the ICCPR, ICESCR, & CERD, and the Optional Protocols thereto; consult international human rights experts to improve Article 24 of the Transitional Constitution; and enact laws protecting privacy and freedom of expression online.

Reviews later this year

The UPR is an important U.N. process aimed at addressing human rights issues all across the globe. It is a rare mechanism through which citizens around the world get to work with governments to improve human rights and hold them accountable to international law.

The Human Rights Council hearings on South Sudan and Uganda’s UPR reviews will take place in October and November 2016. We encourage you to participate in this process by following along and spreading the word. You can follow the discussions online using the Twitter hashtag for the UPR sessions: #UPR.

This article was originally published on Ephraim’s professional page on Access Now.

Kenya has had its reputation for protecting free expression tarnished over the past two years, due to its increasingly harsh and arbitrary enforcement of the highly controversial Section 29 of the Kenya Information and Communications Act (KICA). This section of the law has been used to jail journalists and bloggers for their communications. However, a ruling last month by the Kenyan High Court in the Geoffrey Andare v. Attorney General case represents a beacon of hope for free expression in the region.

The KICA Act was amended in 2014, and the amendments made it possible for Section 29 to be misused to attack free expression, something Kenyan authorities seem to have been increasingly willing to do. In 2015, authorities prosecuted seven people; in 2016, they have prosecuted 13.

On April 19th of this year, Judge Mumbi Ngugi struck down Section 29. Unfortunately, in what could be interpreted a reprisal for her courageous ruling in favor of free expression, she was then transferred the very next day to a court in Kericho (upcountry), where she would be responsible for handling less controversial cases.

Now, the Kenyan government has a crucial decision: it can either accept the court’s ruling, and protect Kenyans’ fundamental human right to free expression, or fight it, and further erode Kenya’s reputation as a champion of free expression.

How does Section 29 threaten free expression?

Section 29 of KICA is the provision that has been used to threaten internet users and bloggers with arrests and prosecution. The clause states:

“(a) that a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person; commits an offence and shall be liable on conviction to a fine not exceeding Ksh. 50,000 or to imprisonment for a term not exceeding three months, or both.“

This provision is extremely vague, and authorities could therefore use it to prosecute anyone who disagrees with someone in a position of power, including government officials or  members of the private sector and their families. As such it represents a powerful tool for silencing the voices of people who are dissenting from the government or otherwise critiquing those in power. This includes the voices of vulnerable at-risk groups: marginalized minorities, such as women; communities of color; journalists; bloggers; sexual rights activists;  human rights defenders; and others who are not among the powerful elite in Kenya.

Section 29 stood in contravention of international human rights law standards for acceptable limitations on free speech. In the The Sunday Times v The United Kingdom case, the European Court of Human Rights stated that the law must be of “sufficient precision to enable the citizen to regulate his conduct.” This important ruling has been cited at the African Union and African Regional Economic Communities courts, and at various national constitutional courts in Africa and across the world.

In submissions before the court in Geoffrey Andare v. Attorney General, Kenya’s Attorney General (AG) Githu Muigai, and Director of Public Prosecutions (DPP) Keriako Tobiko, argued that Section 29 was aimed at protecting the reputation of others. However, Judge Ngugi rightly rejected this argument, highlighted the fact that there are already laws in place to deal with both libel and defamation.

Kenyan ruling is part of positive trend toward protecting expression

Access Now is heartened by the ruling in Kenya, which lights the way toward increased protections for free expression in the Sub-Saharan Africa region. We see it as part of a growing trend, in line with a December 2014 ruling by the African Court on Human and Peoples’ Rights, which found that imprisonment for defamation violates the right to freedom of expression. The court also condemned the use of criminal laws to restrict free speech in a broad range of circumstances.

Although the African Union ruling relates specifically to criminal defamation, the Kenyan ruling is similar in that Section 29 provisions were being used for the same purpose, to unlawfully curtail free speech. That is why Judge Ngugi struck down Section 29, determining that it violates Article 24 and 33 of Kenya’s Constitution.

The ruling in Kenya is also part of a larger trend, where constitutional courts in democracies in developing countries are protecting fundamental rights. Just last year, India’s Supreme Court struck down Section 66A of the Indian Information Technology Act, a provision similar to Kenya’s Section 29 of KICA.

What now?

As we note above, the Kenyan government must decide to accept the Geoffrey Andare v. Attorney General ruling, or fight it. And it appears, unfortunately, that the Communications Authority of Kenya may be planning to appeal the ruling, even though they were not originally involved in the case.

We call upon the Communications Authority of Kenya and the law officers of the government of Kenya to abandon plans to appeal the ruling and argue for the reinstatement of this unjust and overbearing law.

We also call upon nearby African Union member countries to reform any laws with vague, rights-harming clauses similar to Kenya’s Section 29.

Access Now is closely following the debate in the coming week, and we will remain vigilant and speak out against any attempt to undermine free expression in Kenya.

This article was originally published on Ephraim’s professional page on Access Now.

Peter Micek and Deji Olukotun contributed to this post.

UPDATE 2/24/2016:  The Uganda Communications Commission stated in a Facebook post on Tuesday that the blocking order comported with the Uganda Communications Act, and wrote “We truly regret the inconvenience all of you might have suffered.” This guarded apology is a thinly veiled admission that the UCC went too far, and marks a step towards the government’s duty to provide a remedy under the U.N. Guiding Principles on Business and Human Rights. We believe President Museveni should apologize for the blocking order and provide effective remedies for affected users, including small business owners impacted by the shutdown of mobile money services. Finally, despite the UCC’s claims, this action did not comport with international law nor with the government of Uganda’s obligations to uphold freedom of expression.

Last week, as the people of Uganda headed to the polls for its presidential election, the government cut off internet services — including Facebook and Twitter — for four days. The reason? MTN Uganda confirmed that the shutdown order, issued by the Uganda Communications Commission, was purportedly to block services “due to a threat to Public Order & Safety.” Other telcos, including Airtel, Smile, Vodafone, and Africel, were also asked to cut off services, and complied.

President Yoweri Museveni, who was seeking re-election, later explained that he had issued the order “because some people use those pathways for telling lies.” A second rationale offered for the shutdown, which included cutting access not only to social media but also mobile money services, was that it would prevent people from offering or taking bribes. Notably, during the voting, opposition candidate Kizza Besigye was confined to house arrest, and President Museveni has now been re-elected to office.

This is an election that observers did not consider free or fair. At Access Now, we are deeply concerned about the shutdown, which directly interfered with citizens’ fundamental right to seek and impart information during the election.

Today, we delivered a joint letter from 23 Ugandan, African, and international organizations to authorities at the African Union and the United Nations, among others, calling for action on the four-day internet shutdown. The letter includes a call for the government to provide redress for those affected by the shutdown; for an investigation of such shutdowns to be conducted; and for the United Nations to pass a resolution declaring that shutdowns are a violation of human rights. You can read it here.

In the the letter, the coalition states:

Research shows that internet shutdowns and state violence go hand in hand. Shutdowns disrupt the free flow of information and create a cover of darkness that allows state repression to occur without scrutiny. Worryingly, Uganda has joined an alarming global trend of government-mandated shutdowns during elections, a practice that many African Union member governments have recently adopted, including:  Burundi, Congo-Brazzaville, Egypt, Sudan, the Central African Republic, Niger, Democratic Republic of Congo.

Internet shutdowns — with governments ordering the suspension or throttling of entire networks, often during elections or public protests — must never be allowed to become the new normal. Justified for public safety purposes, shutdowns instead cut off access to vital information, e-financing, and emergency services, plunging whole societies into fear and destabilizing the internet’s power to support small business livelihoods and drive economic development… Uganda’s shutdown occurred as more than 25 African Union member countries are preparing to conduct presidential, local, general or parliamentary elections.

The letter specifically asks for authorities to:

• call upon the Ugandan government to provide redress to victims of the internet shutdown, and pledge not to issue similar orders in the future;

• call on African states to uphold their human rights obligations, and not to take disproportionate responses like issuing shutdown orders, especially during sensitive moments like elections;

• investigate shutdowns, in their various forms, in order to produce public reports that examine this alarming trend and its impact on human rights, and make recommendations to governments and companies on how to prevent future disruptions;

• encourage telecommunications and internet services providers to respect human rights and resist unlawful orders to violate user rights, including through public disclosures and transparency reports;

• encourage the African Commission on People’s and Human Rights, the United Nations Human Rights Council, and the U.N. General Assembly to resolve that internet shutdowns violate freedom of expression per se and without legal justification.

The letter was signed by Access Now, Association for Progressive Communications (APC), African Centre for Democracy and Human Rights Studies (ACDHRS), Article 19 East Africa, Chapter Four Uganda, CIPESA, CIVICUS, Committee to Protect Journalists, DefendDefenders (The East and Horn of Africa Human Rights Defenders Project), Electronic Frontier Foundation, Global Partners Digital, Hivos East Africa, Index on Censorship, ifreedom Uganda, Integrating Livelihoods thru Communication Information Technology (ILICIT Africa), International Commission of Jurists, ISOC Uganda, Kenya, KICTANet, Media Rights Agenda, the African Media Initiative (AMI), Unwanted Witness, Web We Want Foundation, Women of Uganda Network (WOUGNET), and the Zimbabwe Human Rights NGO Forum.

Help us fight internet shutdowns

Internet shutdowns do not restore order, protect rights, or keep people safe. They are a blunt instrument that should never be wielded by a democratic regime that protects human rights. We’ll be stepping up our fight against internet shutdowns in 2016. To stay updated and find out how you can join the fight, follow us on Facebook or Twitter, and subscribe to our newsletter.

This article was originally published on Ephraim’s professional page on Access Now.

Deji Olukotun contributed to this post.

The government of Uganda ordered telecommunications companies to block social media on Thursday as the country prepared to vote for national elections. Journalists recorded that Twitter and Facebook were blocked, but circumvention of the block was possible, in some instances, through the use of Virtual Private Networks (VPNs). Leading mobile internet service provider MTN confirmed the order from the government in a Tweet.

The UCC has directed MTN to disable all SocialMedia & MobileMoney services due to a threat to Public Order & Safety. pic.twitter.com/BqPcUyW0QF

— MTN Uganda (@mtnug) February 18, 2016

The blocking in the country followed an outage earlier this week, confirmed by Access Now, that may have been a test of the telcos’ blocking capability. The United Nations Office of the High Commissioner on Human Rights has since spoken with Ugandan authorities to discuss the human rights impact of their blocking order.

Uganda has clamped down on free expression and privacy in the lead up to this month’s presidential election. The country acquired sophisticated surveillance software at the close of 2015, when the military bought Finfisher’s malware intrusion software, which allows the infection of devices and monitoring by operators of the software. This year the government has also intimidated and attacked journalists, paralyzing journalist Andrew Lwanga from the waist down for covering a street protest in January.

Although MTN publicly announced the blocking order, the company shared the user data of about 10 million subscribers with the ruling party in the run up to the elections. In turn, MTN users received a text message from the National Resistance Movement’s Tuongee Communication Center encouraging them to vote for the sitting president, Yoweri Kaguta Museveni. The Ugandan Election Commission, tasked with overseeing voting on February 16, also banned mobile phones from polling stations. MTN has a complex relationship on the continent, where it faces a nearly $4 billion fine in Nigeria for, ironically, safeguarding the anonymity of its users by not requiring the registration of identification for SIM cards.

Internet shutdowns harm everyone

Internet shutdowns do not restore order, protect rights, or keep people safe. They are a blunt instrument that should never be wielded by a democratic regime that protects human rights. Yet they are on the rise worldwide. In 2015, we recorded nearly 20 shutdowns across the globe. This is a very important opportunity to be vigilant about defending and extending digital rights especially as previous research shows internet Shutdowns and state violence go hand in hand.

Last year, experts at the U.N. issued an historic statement declaring that internet “kill switches” can never be justified under international human rights law, even in times of conflict. And Access Now urged African Union and U.N. leaders to take action on a similar shutdown in Burundi. Whether shutdowns take place in in Egypt, Sudan, the Central African Republic, Niger, Democratic Republic of Congo, Congo-Brazzaville, Burundi, or any other place, shutdowns to quell protests or silence dissent are not just ineffective. They are a clear violation of our fundamental rights.

This article was originally published on Ephraim’s professional page on Access Now.